Family Courts Lack Power to Transfer Cases

Source: Rajasthan High Court

Why in News? 

A Division Bench of the Rajasthan High Court comprising Justice Sudesh Bansal and Justice Anil Kumar Upman, in the case of Hema v. Mohit Bhardwaj (2026), answered a civil reference made by a Family Court and held that Family Courts cannot exercise the power of transfer under Section 24 of the Code of Civil Procedure, 1908 (CPC).  

• The Court further held that such power cannot be conferred upon Family Courts through a judicial order of a Single Judge of the High Court.

What was the Background of Hema v. Mohit Bhardwaj (2026) Case? 

• A Family Court (Family Court No. 1, Bharatpur) by its order dated 06.12.2025 transferred four matrimonial cases pending before it to another Family Court within the same district. 
• The Family Court relied upon a "general view" expressed by a Single Judge of the Rajasthan High Court in S.B. Civil Transfer Application No. 143/2016 (Shantanu Agarwal v. Anubha Jain, dated 24.04.2017). 
• The receiving court (Family Court No. 2, Bharatpur), by its order dated 18.12.2025, noted that the Single Judge's 2017 view appeared to be in conflict with Section 24 CPC, creating a contradictory situation. 
• Family Court No. 2 accordingly sought the guidance of the High Court on the issue. 
• Under the administrative direction of the Acting Chief Justice, the present Civil Reference came up before the Division Bench. 

The following questions were referred for consideration: 

• Whether the general transfer power under Section 24 CPC, vested in the High Court or the District Judge, could be exercised by a Family Court to transfer pending cases from one Family Court to another within the same district? 
• If no, whether a Single Judge of the High Court could, by a judicial order, confer such power of transfer upon a Family Court? 
• Whether the order dated 24.04.2017 passed by the Single Judge in S.B. Transfer Application No. 143/2016 constitutes a binding judicial precedent or is merely an opinion, and what is its true purport?

What were the Court's Observations? 

The Court made the following key observations: 

Jurisdiction of Family Courts is Statute-Bound: 

• Family Courts are governed by their own special statute, namely the Family Courts Act, 1984. 
• Section 7 of the Family Courts Act defines and limits the jurisdiction of Family Courts. 
• Since no power of transfer is conferred upon Family Courts under this Act, they cannot exercise such power by invoking Section 24 CPC. 
• The Court held: "The Family Court while exercising judicial power and jurisdiction, cannot travel beyond the jurisdiction entrusted by virtue of Section 7 of Family Courts Act." 

Section 24 CPC Vests Power Only in District Court or High Court: 

• Section 24 CPC empowers only the High Court or the District Court to transfer, withdraw, or re-transfer suits, appeals, or other proceedings pending before them or any subordinate court. 
• One Family Court is not subordinate to another Family Court within the same city or district. 
• Therefore, the inter se transfer of cases between two Family Courts within the same district falls outside the scope of Section 24 CPC altogether. 

Single Judge Cannot Confer Jurisdiction by Judicial Order: 

• Since Family Courts have no transfer power, a Single Judge of the High Court cannot confer such power upon them through a judicial order. 
• The Single Judge's 2017 order had failed to take into consideration Section 7 of the Family Courts Act. 

2017 Single Judge Order Held Per Incuriam: 

• The view expressed by the Single Judge that Family Courts situated in the same city or place could exercise transfer power suo motu or on an application by parties was held to be per incuriam and violative of Section 24 CPC. 
• The relevant paragraphs of the 2017 order were held not to be binding judicial precedent and need not be followed by Family Courts. 

Order Treated as Non-Est: 

• The Division Bench observed that the transfer order dated 06.12.2025 passed by Family Court No. 1, Bharatpur was passed without jurisdiction and was accordingly treated as non-est. 
• The parties were granted liberty to invoke the jurisdiction of the High Court under Section 24 CPC for appropriate relief. 
• The civil reference was accordingly disposed of.

What is Section 24 of CPC? 

Section 24 CPC — General Power of Transfer and Withdrawal 

Who Can Exercise This Power: 

• Only the High Court or the District Court. 
• Courts of Additional and Assistant Judges are deemed subordinate to the District Court. 

How Power Can Be Invoked: 

• On application by any party (after notice and hearing). 
• Suo motu by the court itself (without formal application or notice). 
• At any stage of the suit, appeal, or proceeding. 

What the Court Can Do: 

• Transfer any suit, appeal, or proceeding pending before it to a competent subordinate court. 
• Withdraw any suit, appeal, or proceeding from a subordinate court and either:  
  • Try or dispose of it itself. 
  • Transfer it to another competent subordinate court. 
  • Re-transfer it to the court from which it was withdrawn. 

Post-Transfer Procedure: 

• The receiving court may either retry the matter entirely or proceed from the stage at which it was transferred or withdrawn. 
• Special directions in the transfer order, if any, must be followed. 

Key Conditions: 

• Transfer must be based on valid and justifiable grounds. 
• Judicial discretion must be exercised impartially, guided by justice and equity. 
• Frivolous or mala fide transfer applications may be dismissed. 
• Reasons for transfer must be recorded separately from the main case record. 

Special Provisions: 

• A court with no jurisdiction can also have its suit transferred under this section. 
• A court trying a suit transferred from a Court of Small Causes is deemed to be a Court of Small Causes for the purposes of that suit. 
• Proceedings include execution of a decree or order as well.